DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS TUCSON, ARIZONA and COUNCIL 147, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL- CIO

In the Matter of an )

Interest Arbitration between )

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES )

SOCIAL SECURITY ADMINISTRATION )

OFFICE OF HEARINGS AND APPEALS )

TUCSON, ARIZONA )

)

and ) Case No. 91 FSIP 292

)

COUNCIL 147, AMERICAN FEDERATION )

OF GOVERNMENT EMPLOYEES, AFL- CIO

ARBITRATOR'S OPINION AND DECISION

Council 147, American Federation of Government Employees, AFL-CIO (Union or AFGE), filed a request for assistance with the
Federal Service Impasses Panel (Panel) to consider a negotiation
impasse under section 7119 of the Federal Service Labor-Management
Relations Statute (Statute) between it and the Department of Health
and Human Services, Social Security Administration (SSA), Office of
Hearings and Appeals (OHA), Tucson, Arizona (Employer).

The parties accepted the Panel's recommendation that the
issues in dispute be referred to the undersigned for "med-arb."
Under this procedure, I was vested with authority to mediate with
respect to the outstanding issues, and render a decision if
necessary. Representatives of the parties convened before me on
April 28, 1992, at the Tucson hearing office of the Office of
Hearings and Appeals. When the 10 outstanding issues were not
resolved through the mediation process the parties were then
permitted to submit posthearing briefs with respect to the issues
at impasse and their final offers on the issues. I have now consi
ordered the entire record.

BACKGROUND

The Employer is a component within the SSA whose mission is to
hear and decide cases which have been appealed by claimants for
benefits under social security, supplemental security income, or
Medicare. The Union represents approximately 15 employees in the
Tucson office who are part of a nationwide consolidated bargaining
unit of about 48,000. They work in such jobs as legal processing
clerk (LPC), decision writer, scheduler, computer specialist, and

hearing assist ant.1/ The parties' collective-bargaining agreement
expires in January 1993. This dispute arose out of the Employer's

decision to consolidate its operations from two separate floors to
one within the same building.2/

ISSUES AT IMPASSE

The issues at impasse concern: (1) partitions for hearing
assistants; (2) the location of hearing assistants; (3) partitions
for legal processing clerks; (4) the location of legal processing
clerks; (5) the amount of office space for decision writers; (6)
choice of offices for decision writers; (7) the amount of office
space for the scheduler; (8) the amount of office space and
partitions for the FOSA/computer specialist; (9) filing cabinets
for the local Union representative; and (10) the overall floorplan
of the Tucson hearing office.

THE POSITIONS OF THE PARTIES

A. The Union's Position

The Union proposes the following wording with respect to the
issues at impasse:

Hearing Assistants

1. The Employer will provide at least three partitions per
workstation for employee privacy and quiet.

2. These workstations will be located next to the windows.

Legal Processing Clerks

3. The Employer will provide at least three partitions per
workstation for employee privacy and quiet.

4. These workstations will be located next to the windows.

1/ One of the employees at the Tucson office is an attorney advisor

represented by a different union. There are also three
administrative law judges (ALJ), a supervisory staff attorney, and
a hearing office manager and an assistant manager not represented
by any union.

2/ The space renovations were implemented on September 11,
1991.

Decision Writers

5. The Employer will provide each decision writer a ceiling-high
private office of at least 125 square feet in working space.

6. From among the three offices available, the AFGE unit employees
will get first choice by seniority.

Scheduler

7. The Employer will provide the scheduler at least 75 square feet
of working space with at least two partitions.

For purposes of seat selection the scheduler will be considered
part of the LPC Unit.

FOSA/Computer Specialist

8. The FOSA/Computer Specialist will have a workspace of at least
75 square feet and will be provided at least three partitions.

Filing Cabinet for the Local Union Representative

9. The Employer will provide the local Union representative with a
locking two-drawer filing cabinet.

Floorplan

The Union's four alternative floorplan options are attached to

this decision as Appendix A.

The Union maintains that the onsite visit by the undersigned
to the general work area established the need for partitions. They
would create a more productive work environment by suppressing
excessive noise and providing affected employees with needed
privacy. While the Employer does not object to providing
partitions, its counterproposal is unacceptable because it would
allow "higher level management to veto necessary furniture without
regard to employees' needs." It also "misses the point" because,
based on SSA's own estimates, there will be over $7 million
available at the end of Fiscal Year 1993 in unobligated funds in
its building construction program, so "the Agency does not need to
request funding" that it already has. Moreover, because the
partitions would be moveable, free standing, and "allow air
circulation above and below," SSA's air circulation concerns have

been addressed. Its proposals for partitions also are "consistent
with recent Panel decisions."

Its proposals regarding the location of hearing assistants and

legal processing clerks next to windows should be adopted because:
(1) no work-related reasons were proffered which would preclude it,

(2) it would not interfere with the Employer's mission, and (3) it
is a positive benefit for unit employees.

More office space should be provided for decision writers
because the current 94 square feet "is too small." This is
confirmed by the oral and written testimony of one of the decision
writers who "demonstrated that she had difficulty working in these
cramped quarters." The Employer's suggestion that employees give up
furniture is unacceptable because it conflicts with the parties'
previous agreement that employees would retain past practices and

prior benefits. In addition, the Union's proposal of at least 125
square feet of working space should be adopted because "SSA will
have to reconstruct the offices anyway" under its own proposal, and
the money to do so is currently available.

Regarding the decision writers' choice of offices, the
Employer's opposition to the Union's proposal is based on "a weak
and paternalistic reason," i.e., that management is trying to be
fair both to AFGE and to the union representing a third decision
writer. AFGE, however, exercised its bargaining rights while the
other union did not. "Through its acquiescence" the other union
waived its right to negotiate over which office the employee it
represents should get. The Union's proposal that the two employees
it represents get to choose from any of the three offices also
should be adopted because: (1) it will contribute to improved
morale and efficiency, and (2) the Employer failed to demonstrate
a bona fide reason for adopting its counteroffer.

The parties' dispute over the amount of working space to be
provided for the scheduler should be resolved on the basis of its
proposal "because it will reduce the likelihood of disputes." In
this regard, the amount of space to be granted under its proposal
is clear (75 square feet), and would not place an undue burden on
the Employer. The Employer's proposal, on the other hand, is vague
and may lead to disputes over the meaning of the phrase "existing

standards," which its own recent documentation refers to as
"guidelines" rather than "standards." This also applies to the
parties' differing proposals regarding the FOSA/Computer
Specialist, so the Union's proposal on this issue should be adopted
for identical reasons.

Its proposal that the Employer provide the local Union
representative with a locking filing cabinet is reasonable because
she needs a secure place to store labor-relations related
documents, it would not create an undue burden on the Employer, and
no bona fide reasons to the contrary were given.

Finally, on the key issue of the office's floorplan, "SSA
improperly implemented the office renovation without completing its
bargaining obligation." Moreover, the Union has established the
need for more working space for all its unit employees, a need
which can be accommodated "by providing the two decision writers

with larger offices, moving the hearing assistants to another area
in order to give all employees more space." The four options it
proposes, any one of which it would find acceptable, balance the
needs of employees for more space with the Employer's need to keep
costs to a minimum. To this end, its options only require the
removal of one wall, the relocation of a few employees to another
area of the office, and the possible modification of telephone
lines.

The Employer's opposition to any change to its
unilaterally-imposed current floorplan is generally unfounded, and
the documents it has provided to support its position are
"self-serving." For instance, it has provided no evidence for its
claim that it is "mandated" to have two hearing rooms, nor are two
such rooms actually needed, as the Union's witnesses testified at
the hearing. The scheduling data provided by the Employer also fail
to support the view that two hearing rooms are required for the
Employer to perform its mission. In conclusion, the Union is
proposing to relocate the hearing assistants to one of the hearing
rooms "because the space is available and would allow SSA to avoid
removing additional walls." Thus, its proposed floorplan options
are cost-effective and accommodate the needs of the employees.

B. The Employer's Position

The Employer's counterproposals are as follows:

Hearing Assistants

1. Management will request funding to provide moveable partitions

between workstations as long as the partitions are not placed

parallel to the window wall.

2. Employees may choose where they sit within the area allocated

for hearing assistant and legal processing clerk functions.

Disputes will be settled according to service computation date.

Legal Processing Clerks J

3. Management will request funding to provide moveable partitions

between workstations as long as the partitions are not placed
parallel to the window wall.

4. Employees may choose where they sit within the area allocated

for hearing assistant and legal processing clerk functions.
Disputes will be settled according to service computation date.

Decision Writers

5. Each decision writer will have a ceiling-high private office of
100 square feet.

6. From the two offices designated by the Employer to be decision
writer offices, AFGE unit employees will choose which one they
prefer by seniority as determined by service computation date.

Scheduler

7. The scheduler will be provided working space in accordance with
existing standards.

Management agrees to request funding for no more than two
partitions for use by this employee with the understanding that no
partition will be used parallel to the window wall which would
impede air circulation.

FOSA/Computer Specialist

8. In accordance with existing space standards, the FOSA/Computer
Specialist will have a workstation of 75 square feet.

Management agrees to request funding for no more than two
partitions for use by this employee with the understanding that no
partition will be used parallel to the window wall which would
impede air circulation.

Filing Cabinet for the Local Union Representatives

9. The Employer will continue to provide the Union such furnishings
as were being Provided as of March 12. 1988.

Floorplan

The current layout for the Tucson hearing office [shall] be
maintained.

In the Employer's view, the current allocation of space
facilitates the accomplishment of its mission of providing service
to the public, is consistent with SSA's space allocation standards,
and "treats employees similarly situated equitably." The
implementation of any of the Union's proposed floorplans, on the
other hand, would have one or more of the following adverse
effects: (1) decrease the ability of the hearing office to meet it;
mission; (2) "treat employees performing the same function in
dissimilar manner; (3) expose management to grievances from
employees in other unions;" (4) violate (a) management prerogatives
concerning how work is to be performed and supervision provided,

and (b) SSA's space allocation standards; and (5) "require the
expenditure of scarce taxpayer funds for the provision of more
spacious offices to employees who are either not entitled to more

space or not entitled to an office."

The Tucson Hearing Office generally complies with the SSA/OHA

nationwide Space Allocation Standards. Where it does not, the
discrepancies are minor, and caused either by two building
constraints peculiar to the facility: (1) interior walls must be
laid at 5 foot intervals, and (2) the air conditioning vents are
only on the exterior walls; or because of fire safety requirements.
This means that offices "must be constructed with one wall along an
exterior wall in order to have any ventilation," and explains
management's opposition to placing partitions in a direction
parallel to the exterior wall. In no case, however, did the
Employer "feather its own office space nest at the expense of AFGE
employees." Moreover, the Union's argument that the employees it
represents were inequitably treated in the amount and kind of space
which they received is demonstrably false.

While the current floorplan ensures mission accomplishment by

providing facilities adequate to meet the needs of appellants, and
is consistent with the standards for space allocated throughout
OHA, the Union's various floorplan options appear to have the
primary purpose of increasing office space for the hearing analysts
represented by AFGE. There is, however, "no reason to provide
either of the AFGE analysts with a larger office." The complaints
raised by one of the analysts about lack of space are because she
"has in her office two extra pieces of furniture," which are now
being used "as an excuse for a larger office." The Union's
proposals would also have the effect of providing the analysts it
represents with more apace than an employee engaged in the same
function represented by a different union. Although "AFGE
obviously does not care about members of another bargaining unit,"
management must.

Because the Tucson Hearing Office "is mandated to have two
hearing rooms," the floorplan options proposed by the Union are all

unacceptable. In general, the alternatives proposed by the Union

decrease the ability of the office to meet its mission "by
decreasing the hearing, reception, or counsel area available to the
public, decreasing security, or decreasing supervision." Finally,
the Union's "solutions" also "have the ironic effect of increasing
both horizontal and vertical inequity" by in some cases granting
employees at the same grade different amounts and kinds of space,
while in others providing lower graded employees with more office
space than their supervisor<.

CONCLUSIONS

As I have studied the evidence and arguments presented by the
parties, both in person and through their posthearing briefs, I am
moved by a desire to balance the needs of employees for more space
and quiet with the need to respect nationally set space standards
that SSA management has determined as proper.

In support of the Union's position, the record reveals that
the two hearing rooms at the facility were needed for only 72 days
during January through mid-June 1992 (plus 2 days total additional
use by other Federal agencies). Yet awarding one of them to
accomplish employees' wishes would violate national standards, and
it is uncontroverted that an additional ALJ will soon be added. In
addition, I am persuaded by both the on-site inspection and the
Employer's assertions that altering the current reception area to
provide more space for a disaffected employee would lead to
inadequate supervision of, and communication with, the employee,
and to a possible breach of security.

This leads me to a need to order adjustments, in light of
essential equipment space, and problems caused by the building
configuration, within present employee locations. Yet I feel that
moveable partitions should be ordered to the extent that they do
not unavoidably hinder the circulation of air. The feasibility of
such should be established in consultation with an expert
knowledgeable in heating, ventilation, and air conditioning.

The current location of an employee represented by a different
union should not be disturbed. Furthermore, the amount of furniture
in an employee's office should be left to employee discretion for
personal additions, as it seems now to be. Any resulting congestion
however, cannot be used to justify an expanded allocation of space.
Moreover, I am persuaded that the Union has justified the need for
a locking two-drawer filing cabinet to ensure adequate storage and
security of confidential matters.

In conclusion, in my view the following order is the best way
to balance the Employer's need for mission accomplishment with the
demonstrated needs of employees for improved quiet and lack of
interruptions.

ORDER

The Employer shall Supply moveable partitions for privacy and
quiet between workstations for hearing assistants and legal
processing clerk functions, and partitions parallel to a window
wall if adequate air passage can be arranged at the bottom and/or
at the top of such parallel partitions. This decision will be made
in consultation with an expert, as described above.

Hearing assistants and legal processing clerks shall choose
where they shall sit, with disputes settled in accordance with
service computation dates.

Each decision writer shall have a ceiling-high private office
of 100 square feet including, as needed, footprint and circulation,
from the two offices designated by the Employer, with disputes
settled in accordance with service computation dates.

The scheduler shall be provided with 75 square feet of work
space including, as needed, footprint and circulation, and the
Employer shall supply two moveable partitions for privacy and
quiet.

The FOSA computer specialist shall be supplied by the Employer
a workstation of 75 square feet including, as needed, footprint and
circulation with two moveable partitions and a third parallel to
the window wall if adequate air passage can be arranged at the
bottom and/or top of the third partition.

The Employer shall provide the local Union representative with
a locking two-drawer filing cabinet, and also such furnishings as
were being provided as of March 12, 1988.

In addition to the Employer's noted "Authorized Furniture and
Equipment (Hearing Offices)," employees may personally add
additional furnishings that do not hinder their productivity and
comfort.